Mrs Sharon Morell v Tiernan Veterinary Holdings Pty Ltd T/A Highton Veterinary Clinic

[2014] FWC 3929

[2014] FWC 3929

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Mrs Sharon Morell
v
Tiernan Veterinary Holdings Pty Ltd T/A Highton Veterinary Clinic
(U2014/3909)

COMMISSIONER LEWIN MELBOURNE, 7 JULY 2014

Extension of time - s.394 Fair Work Act 2009 - application for unfair dismissal remedy - application made outside 21 day time limit - no exceptional circumstances found - extension of time refused - application dismissed.

[1] On 20 January 2014, Ms Sharon Morell made an application to the Fair Work Commission (the Commission) under s.394 of the Fair Work Act 2009 (the Act) for an unfair dismissal remedy in relation to what she submits was the termination of her employment by Tiernan Veterinary Holdings Pty Ltd T/A Highton Veterinary Clinic (Tiernan). The application was not filed within the time provided for by the Act

[2] Ms Morell, applied to the Fair Work Commission to exercise its discretion under s.394 (2) (b) of the Act to grant an extension of time in relation to the lodgement of the application for an unfair dismissal remedy.

[3] S.396 of the Act prescribes initial matters that the Commission must take into consideration prior to considering the merits of the application. 1 The first of those matters arises for instant determination from Tiernan’s objection to the application being dealt with because it was filed outside the period allowed by s.394 (2) of the Act.

[4] Directions were issued for filing of submissions and witness statements on this subject. Pursuant to these directions Ms Morell filed submissions on 28 April 2014 and Tiernan on 14 April 2014. The matter was heard on 16 May 2014.

Background

[5] Ms Morell worked with Tiernan as a Dog Groomer. That relationship ended on 24 December 2013. Ms Morell’s application for an unfair dismissal remedy was made on 20 January 2014, 27 days after the termination of her employment.

Statutory provisions

[6] An application to the Fair Work Commission for an unfair dismissal remedy must, be made within 21 days after the dismissal took effect or within such further period as the Fair Work Commission allows. The 21 days for lodgement does not include the date that the dismissal took effect. 2 As a result, the first day of the period commences on the day following the dismissal.

[7] The relevant statutory provisions are as follows:

394 Application for unfair dismissal remedy

(1) A person who has been dismissed may apply to the FWC for an order under Division 4 granting a remedy.

Note 1: Division 4 sets out when the FWC may order a remedy for unfair dismissal.

Note 2: For application fees, see section 395.

Note 3: Part 6-1 may prevent an application being made under this Part in relation to a dismissal if an application or complaint has been made in relation to the dismissal other than under this Part.

(2) The application must be made:

(a) within 21 days after the dismissal took effect; or

(b) within such further period as the FWC allows under subsection (3).

(3) The FWC may allow a further period for the application to be made by a person under subsection (1) if the FWC is satisfied that there are exceptional circumstances, taking into account:

(a) the reason for the delay; and

(b) whether the person first became aware of the dismissal after it had taken effect; and

(c) any action taken by the person to dispute the dismissal; and   

(d) prejudice to the employer (including prejudice caused by the delay); and

(e) the merits of the application; and

(f) fairness as between the person and other persons in a similar position.

[8] It is well established that a limitation period is the general rule and an extension of time is the exception to it. An applicant has the burden of demonstrating that an extension of time is justified. 3 In order for the power to exercise the discretion to allow a further time for the filing of the application to arise I must be satisfied that there are exceptional circumstances, taking into account all of the relevant circumstances, including the matters prescribed by s394 (3) (a) - (f) of the Act. To be exceptional circumstances must be out of the ordinary course, or unusual, or special, or uncommon but need not be unique, or unprecedented, or very rare.

Consideration

[9] I will deal with the matters to be taken into account in the order of s.394 (3) of the Act.

(a) The reason for the delay

[10] Ms Morell, in her witness statement and viva voce evidence, submitted that she was unsure of her ability to lodge an unfair dismissal application with the Commission because she was not clear about the nature of her relationship with Tiernan, that is whether she was an independent contractor or an employee. Ms Morell submitted that when the relationship with Tiernan came to an end she did not believe she could file an application under s.394 of the Act, until she was advised on 19 January 2014, by a neighbour’s mother, that she was able to do so. Consequently, nor was she aware of the 21 day time limit for filing an application for unfair dismissal with the Commission. Ms Morell also submitted that due to the Christmas period, her capacity to seek legal advice on the matter was significantly impeded.

[11] Such circumstances do not meet the test of exceptional circumstances. As found by the Full Bench in Cheyne Leanne Nulty v Blue Star Group Pty Ltd, 4mere ignorance of the statutory time limit is not an exceptional circumstance and the onus is on an applicant to seek out any remedy they may have in a timely fashion. Accordingly, I am not satisfied that the reasons given by Ms Morell for the delay in making the application establish any exceptional circumstances or reason for the delay in filing the application which would favour allowing a further period for the making of the application. Just as bare ignorance of the legislation and its relevant provisions by an employee will not constitute exceptional circumstances, doubt or ignorance of the true nature of an employment relationship will not comprise exceptional circumstances. Particularly, in my view, where enquiries into that issue are only coincidently prompted by casual conversation some time after the asserted employment relationship has ended.

(b) Whether the person first became aware of the dismissal after it had taken effect

[12] Ms Morell’s submissions confirm that although she may not have been certain of the true nature of her relationship with Tiernan, she was aware that the relationship would end following a meeting with the proprietors on 17 December 2014. This was because, after months of attempting to do so, the proprietors and Ms Morell had been unable to come to amicable contractual arrangements. In that meeting it was agreed that Ms Morell would continue her relationship with Tiernan up until 24 December 2014 but no longer. This fact is not disputed. There is nothing arising from this consideration which would favour allowing a further period for the application to be made. On the contrary it establishes that Ms Morell was aware prior to 24 December 2014 that the relationship would end on that date.

(c) Any action taken by the person to dispute the dismissal

[13] Ms Morell failed to put forward any evidence that she had taken any action to dispute the alleged dismissal, other than the application filed with the Commission. These circumstances do not constitute something exceptional which would favour allowing further time for the application to be made. On the contrary, Ms Morell’s not disputing the termination of her relationship with Tiernan would count against an exercise of discretion to accept the application out of time.

(d) Prejudice to the employer (including prejudice caused by the delay)

[14] I do not consider on what is before me, that there would be any prejudice to the employer caused by the delay if the application were accepted out of time. This is not an exceptional circumstance of itself or a reason to extend or not extend the time for the making of the application.

(e) Merits of the application

[15] The merits of the application are made complex by the issue of the indeterminative nature of the relationship between the Ms Morell and Tiernan and the circumstances under which it came to an end. In the course of the hearing of the application to extend the time for the application to be made, it was not possible or desirable to conduct the necessary hearing of all of what would be required to determine the nature of the relationship which came to an end on 24 December 2014. In particular, it was not possible or appropriate to detail if it were properly characterised as an employment relationship. In my view, I must treat the merits of the application as neutral for my consideration of the application to extend time. I conclude that I cannot be satisfied that the application is without merit in the circumstances.

(f) Fairness as between the person and other persons in a similar position

[16] On the evidence before me, there are no other persons in a similar position to Ms Morell in this matter.

Conclusion

[17] I have weighed all of the circumstances in which the application was lodged, including each of the matters contained in s.394 (3) (a) - (f) of the Act. I am not satisfied that there are any exceptional circumstances which would give rise to the power to exercise the discretion to allow a further period for the application to be accepted out of time. It is not uncommon for persons whose working relationships come to an end (however understood) to have no knowledge of any legal right of redress or cause of action they may have in the relevant circumstances. The provision of 21 days in which to enquire into and establish what rights may be available under the Act is the statutory policy which should be adhered to in such circumstances. In my judgement, Ms Morell rested on her rights and only by serendipitous conversation with a relative of a neighbour did she choose to explore them. It is not an exceptional circumstance that a person may do nothing to enquire into and act upon any legal right they may have. Had Ms Morell made prompt efforts to enquire into and establish the availability of an application under s394 of the Act, an application could have been lodged within the prescribed time. On what is before me, as Ms Morell knew, on 17 December 2014, that the relationship would end on 24 December 2014, I am also not persuaded that the Christmas holiday period should be considered as an exceptional circumstance which caused the delay for filing the application.

[18] The application is therefore dismissed and an Order will issue to that effect.

COMMISSIONER

Appearances:

Mr G Burns of Counselon behalf of the Applicant

Mr J McDougal of Counselon behalf of the Respondent

Hearing details:

Before Commissioner Lewin

2013

Melbourne

16 May 2014

 1   Fair Work Act 2009 s. 396 (a).

 2 Brisbane South Regional Health Authority v Taylor (1996) CLR 541.

 3   Cheyne Leanne Nulty v Blue Star Group Pty Ltd [2011] FWAFB 975.

 4   Ibid.

Printed by authority of the Commonwealth Government Printer

<Price code C, PR551995>